CPSIA: What will be enforced?

by Walter Olson on February 7, 2009


To cap a week of bewilderingly rapid developments, the Consumer Product Safety Commission yesterday announced new guidelines somewhat widening the scope of products that it will consider presumptively lawful to sell (unless a merchant is actually on notice that they contain hazards) when the law’s major provisions take effect three days from now, on Tuesday, Feb. 10. From a quick once-over — and all this is subject to correction by lawyers expert in the matter — the new guidelines appear most useful for the children’s publishing business and for makers of children’s garments and electronics, although fraught with difficult problems even for them; they do little to help many other businesses and small manufacturers affected by the law, and are most ominous as regards two major constituencies affected by the act, resale stores and public libraries.

First, a bit of background. In a February 4 post, “The Blame Game“, Rick Woldenberg has laid out the “noose-like” tightness with which the drafters of the CPSIA sought to prevent the CPSC from granting exemptions from the standards; they also provided that liability under the law would not be suspended just because a request for exemption was under consideration. In short, the CPSIA is purposely drafted to place many advantages in the hands of consumer groups or other litigants who might wish to challenge an exemption in court. Since the CPSC cannot be sure of having the last word — its attempt to carve out an exemption for pre-Feb. 10 phthalate inventories was just struck down — it would be incautious for producers or retailers to rely overmuch on its policy pronouncements, especially since, while it obviously has some discretion over its own enforcement efforts, it cannot prevent others (like state attorneys general) from bringing their own actions. One of those state AGs, Richard Blumenthal of Connecticut, just issued a press release crowing over the consumer groups’ phthalate victory and warning retailers, thrift stores presumably included, that “My office will take whatever steps are necessary [emphasis added] to ensure this phthalate ban is enforced.” (Note that while the phthalate ban was often argued for on the basis of the “precautionary principle” — even if no actual harm to humans has been proved, shouldn’t we alter the formulas for making the items to be safe rather than sorry? — Blumenthal & co. now seek to redefine millions of existing playthings in American homes as “toxic toys”.) It should be noted that private activist and lawyer groups often shop potential cases to state AGs’ offices, and in turn are made monetary beneficiaries of resulting fines and settlements (more on California’s CEH here).

In any event, the CPSC now edges into daring and legally uncharted territory by declaring that it will presumptively excuse not just untreated beige cotton, wool and other materials, but also dyed fabrics, as well as certain innocuous varieties of trim. This is of help to garment makers, who will still of course face possible legal exposure on their plastic buttons, metal snaps, and other nonfabric components. Electronics makers will benefit because the commission will adopt a more lenient view of when components are inaccessible, that is, not reachable by a child even after an effort to smash and break the object. Certain metals and alloys known not to contain lead will also be listed as presumptively safe. Finally, “ordinary” children’s books (it is not clear whether books with staples qualify) will be presumptively lawful if published since 1985.

Published since when?

That’s right, since 1985. It seems before that year some books were printed with lead-containing inks. None of the discussion I’ve seen of the issue seems to report that any American child has ever been injured by eating the ink in books. But the implication is pretty clear for books published before 1985: unless you’d care to put them through testing, title by title and edition by edition, it’s now legally safer to throw ‘em out. One might propose vast bonfires in public squares, if not for the fear of violating air quality regulations.

It is not unusual for small independent booksellers to have in inventory still-unsold books of pre-1985 vintage. Perhaps these can be saved from landfills through the use of stickers reading, “Sold as a collectible only — under no account to be used by persons under 12″, as sellers of, say, vintage plastic dolls may do. But that doesn’t solve the problem for libraries. Their holdings include millions of pre-1985 children’s books, and if they stock them in children’s sections and allow them to be checked out at children’s request, they can’t very well play the “adult collectible” card. Beyond that, book sales are a major source of financial support for libraries, and inevitably include many of those ultra-terrifying, handle-with-lab-gloves pre-1985 children’s books.

Finally, thrift and resale stores remain in an unenviable position. Relatively few of the children’s goods they sell are composed entirely of materials on the hastily-assembled safe list. Most of the garments have snaps, zippers or plastic buttons; most of the sports items, board games and action toys have metal, vinyl or plastic components that might possibly (even if they probably do not) contain some admixture of lead or phthalates; who knows whether the jigsaw puzzles or spiral-bound art pads were printed before 1985, or, for that matter, would count as a “book”? Don’t even ask about bikes, trikes, strollers, car seats, backpacks, or things with rhinestones. And now you’ve got Richard Blumenthal and his allies vowing to “take whatever steps are necessary” — armed with those $100,000 penalties and those jail terms — against anyone who sells or resells items that a short time ago were a normal and, so far as anyone has been able to prove, harmless part of childhood.

Further discussion from Common Room (with particular attention to pre-1985 books: “I think the CPSC just turned my library into contraband. Or something.”) and Ian at Musings of a Catholic Bookstore. Rumor has it that CPSC will issue further guidance on thrift stores and resellers on or before Tuesday, but as Common Room cautions, “There’s a Difference Between a Policy and a Law“.

P.S. Note, incidentally, that the phthalate ban applies to a different (and generally narrower) range of products than does the lead ban: in particular, playthings and child care items. Peas and Bananas has reprinted the details (& welcome Publisher’s Weekly readers).

Public domain image: Grandma’s Graphics, Mabel Betsy Hill.

{ 5 trackbacks }

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{ 11 comments }

1 Lex Fortis 02.07.09 at 4:09 pm

For those stuck with untested inventories of “dangerous” products, like pre-1985 children’s books, buttons, and so on… maybe the best thing to do would be to send them to your local Congressional representative. I am sure that, in their wisdom, they’ll know how to handle this insidious threat to our children’s health.

2 Renee T 02.07.09 at 5:46 pm

I read the explanation as being a partial response to the second letter from Waxman et al. It does not contain a timeline as mentioned in the letter, but seems to fulfil most of their second request.

I find myself a tad confused what to do if component testing is not approved and article of clothing has say one vendor-vertified metal snap?

3 Sara B. 02.07.09 at 9:52 pm

I’ve been following all of this intensely since I first heard about it last month. But I still have not heard whether this will affect donations to charities, or gift-giving, or re-gifting, or hand-me-downs to another family (even relatives), or even yard sales, or Craigslist-type things, etc. Does anyone know? Are yard sales a thing of the past, at least when it comes to children’s items?

The scariest part of all of this, are those people who still don’t even know this law is even on the books, let alone about to come into effect. My husband is convinced it’s a dumb law that won’t/can’t be enforced. I keep telling him to think again…

4 Deb 02.08.09 at 12:05 am

As usual – a superb write-up.

5 Dawn 02.08.09 at 4:41 pm

So, let me get this straight. The Nancy Drew books that were my mother’s, then mine (with some added then) and now my 10 year old daughter’s, are somehow *harmful* to her health? I read them and lived to tell about it, so did grandma. Heck, I guess she can’t use the cookbooks that were my greatgrandmother’s (she lived to a mere 96) either, as who knows what harmful things might lurk there!

When do we actually stop and use the brains we’ve been given in all of this? People have been handing things down for generations — and unless the publisher of the law ate all those book pages (wait, maybe that explains it!) no one has suffered side effects. I’d be more worried if I were him that kids ARE NOT reading, than how OLD what they’re reading is!

6 the gripping hand 02.08.09 at 10:02 pm

Another question is raised – are these now toxic waste that requires special handling? Will small non-profits, who will have to pull all of these from thrift store shelves, now have to incur disposal costs?

7 Valerie Jacobsen 02.09.09 at 8:00 pm

We own a small, local used bookstore and have been selling used books on the Internet since 1995.

Last year we shipped over 4500 used books to nearly 50 countries. (Note that CPSIA not only regulates distribution and sale but export as well.)

Our bookstore is the sole means of income for our family, and we currently have over 7000 books catalogued. In our children’s department, 35% of our picture books and 65% of our chapter books were printed before 1985.

Many of our older children’s books have painted decorative titles and other cover embellishment, which decoration is an extremely small quantity and which may or may not contain over 600 ppm lead. (The limits for each accessible part or paint layer are going to 300 ppm in August and 100 ppm in 2011.)

We have read the legislation, called our representative, called our senator, contacted the CPSC (no answer), read all of the CPSC press releases, and contacted a lawyer. We still honestly have no idea what is legal to sell, but we cannot simply discard a wealth of our culture’s nineteenth and twentieth children’s literature over this.

8 PENultimate 02.10.09 at 9:13 am

@Sarah B

The CPSC has release this recently (I believe Monday Feb 9): Guidance on the Consumer Product Safety Improvement Act (CPSIA) for Small Businesses, Resellers, Crafters, and Charities (pdf)

It’s availableb on their website.

Here’s the link:
http://www.cpsc.gov/about/cpsia/cpsia.html

According to this release, Charities can only accept items which fulfill the CPSIA requirements.

9 Gale 02.11.09 at 12:17 pm

I’m saddened to learn of thrift stores just tossing their pre-1985 children’s books in the dumpsters. I understand that by nature thrift stores can’t claim they are selling collectors items (since they are a “thrift” store, not an antique shop). But, it’s horrible for them to just be dumped. I’m no lawyer, but I would think they could be legally donated to a college or university library, since by definition these libraries are for adults. Universities could use these books for research purposes and historical preservation.

Arguably, a high school could also take these books. I know that’s drawing a thin line, but arguably a high school library is for high school students–and it’s unlikely that any younger children would have access to these books there. Where I did my student teaching they had classes on writing children’s literature, and we did use children’s books as examples in class and for students to use for research. Also, there are high school students with disabilities that are actually reading on that level, and these books would be valuable to them. They could also be used high school and college art rooms for collages…turning them into wall art which is exempt from the law (although if not published before 1922 that opens up the copyright can of worms…which schools have been fairly safely ignoring for years, but some famous artwork using “found” materials have been subject too).

10 Amber 03.05.09 at 7:30 pm

Just finding this for the first time, I must say this totally boggles my mind! Totally ridiculous and so abhorrent to me. To have to destroy books and quite possibly put people out of business for something as ridiculous and stupid..well..I need to stop ranting.
I rode my bike with no helmet, happily munching away on lead-laden pages and today, I can’t breathe without someone saying it’s ok.
Have we had enough yet??

11 Jack 03.16.09 at 10:13 pm

Is there any way for private (/Canadian) buyers to help out? I would happily buy any books that I could get my hands on to keep them from being destroyed, and I know others who would do the same.

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